Contents

Q:

Trial Work Period-what is it?

A:

This is a Social Security term that allows a disability recipient to try to return to work and still continue to receive monthly Social Security Disability Benefits.

You will not be required to repay the Social Security Administration even if you are working and earning over $1,000 per month, UNLESS you work into your 9th month consecutively. Then your benefits will cease because the SSA considers you are no longer disabled/eligible for disability benefits. I try to encourage my clients to try to work. There is greater dignity in working rather than receiving a subsidy. However, if you cannot do so regularly, then you have lost nothing by trying.

Q:

Why do I need to watch out for Social Security Related Scams?

A:

It would be much more efficient and beneficial for me and my clients if we could pick up the phone and connect with a representative of the Social Security Administration (SSA) to have our questions answered during the course of the case and claim. This is just not realistic. Do not expect SSA to call you either. That is extremely rare.

Most people are going to listen to a call when the person on the other end says “your social security number has been cancelled.”

So, if you receive a phone call from someone stating they are with the SSA, be VERY CAUTIOUS.

Here are a few ways scammers try to get to your social security number and other identifying information:

  • If there is a problem with your Social Security number, in almost all cases, the SSA will contact you by letter. Never provide information over the phone or online.
  • The SSA will never call you promising you benefit approval or an increase in benefits, in exchange for information or money from you.
  • The SSA will never contact you to tell you that your Social Security number has been suspended.

You may report a scam to http://OIG.SSA.gov. This is the Office of the Inspector General of the SSA. It has been reported that scamming of recipients of disability or retirement benefits has skyrocketed in 2018 and 2019 to become the number one (1) type of fraud reported to the SSA and to The Federal Trade Commission.

In the first six months of 2019 people filed 73,000 reports about social security fraud, according to the Federal Trade Commissioner, with losses totaling $17 million!

Q:

If I draw Workers' Compensation benefits am I still entitled to receive SSDIB?

A:

You may certainly receive both but you may not be able to receive the full amount of SSDIB. You will receive the full Workers' Compensation benefits but when the SSDIB kicks in, if you are a high wage earner-(like $45,000 to $50,000 per year in reportable wages) you could possibly receive full SSDIB. If you have a lower yearly wage, the Social Security Administration has authorization by law to deduct your entire monthly WC payment from your monthly entitlement to your SSDIB.

Sometimes it is appropriate to settle your workers' compensation claim which will allow you to receive a higher SSDIB monthly payment. You must still report to Social Security Administration that you have settled your workers' compensation claim and there is an offset language called the Hartman Language that is used in every workers' compensation settlement to reduce the amount of money that Social Security Administration may deduct from their monthly payment to you. That amount is fact-intensive and based on your workers' compensation settlement amount.

Q:

Does age have anything to do with my ability to receive Social Security Disability Income Benefits?

A:

Age is a factor. The Social Security Administration recognizes that when one reaches 50 years old it is harder to train and acquire updated new skills for someone who is disabled from performing their past relevant work. When one reaches the age of 55 and 60 it is even harder to retrain someone. Therefore, if the only available job requires re-training, then once one reaches the age of 55-60 years old the entitlement to SSDIB will be much easier to obtain.

Q:

I worked one job for 20 years but cannot work it anymore, can I get disability benefits?

A:

This question cannot be answered just based on this question alone. More information is needed. What type of work were you performing for the last twenty years? Was it sedentary work, was it light-duty work? The classification of the job is important.

Did you have any skills that you acquired while on this job? Are these skills transferable to other types of work you can do? You may be qualified to perform other types of work and you may not be eligible to receive Social Security Disability Income Benefits.

However, again more information is needed. What is your age? Are you under 50 years old. Then you may not be able to win the Social Security Disability Income Benefits case. If you are over 50 years old, you may be able to win the Social Security Disability Income Benefits case if you have no transferable skills.

What is your education level? If you have a high school education then the vocational evaluator will state that there is another type of work available for you.

Therefore, just because you cannot perform the job you have been working for many years, or even if you were terminated from this job, you must be disabled from ALL FORMS of employment so you can qualify to receive Social Security Disability Income Benefits.

Q:

Can my Disability be solely a psychiatric disability?

A:

If this is what you are seeking your benefits upon it is a tough road to row. It is extremely difficult to win these types of cases but it is not impossible. You must have quality evidence of psychological and-or psychiatric treatment that has been rendered over a period of time. You cannot expect to win if you only have a smattering of treatment here and there, and if your treatment has been rendered by a licensed social worker and not by a highly trained psychologist or psychiatrist. Rest assured is that the Social Security Administration will send you to their own psychologist for a one-time examination. Do not expect a positive report from this Social Security doctor.

A Mental Functional Capacity Evaluation form is a necessary component to be completed by the clinical psychologist or the psychiatrist. It is a very comprehensive form and goes a long way toward your claim for disability.

Your credibility will be measured by the Administrative Law Judge and ultimately will be based on whether you have received treatment for your psychiatric condition. As mentioned above, a small amount of treatment for a psychiatrist's condition, will not help your case at all. Most of the lawyers will not accept your case, to begin with.

Q:

What is my date last insured?

A:

The Social Security Administration states that if you are seeking disability benefits you must have worked 5 out of the last 10 years where you have contributed FICA taxes to the Federal Government. If you are self-employed there are self-employed taxes, but most of the people seeking Social Security Disability Income Benefits have worked for a company. If you worked under the table, and you did not contribute to the system, you will get nothing out of the system.

You must apply for benefits within 5 years after the date you became disabled. If you wait until after this time to apply for benefits you must demonstrate that you were disabled at some point within the 5 years of the time you became disabled.

If you cannot prove that you were disabled until after your date last insured, you cannot win your case and you will not win the benefits.

Q:

How long can I keep my Disability benefits?

A:

In November of 2019, the Social Security Administration (SSA) published proposed Rule changes to the categories of disability reviews. Once a person is declared disabled and eligible for disability benefits, the SSA has a category they put you in to determine when your case will be reviewed in the future. The new category is called MIL or medical improvement likely.

This category would include impairments that the SSA believes typically do not result in permanent irreversible structural damage and will likely get better with treatment.

So, if you have a muscular-skeletal impairment or a certain mental impairment, you can expect a two (2) year review of your condition by the SSA. It is very important for you to continue medical treatment after receiving a favorable decision from the SSA because your continuing medical treatment is exactly what will be used to determine if you continue to be eligible for benefits.

Q:

Is the DDS the Social Security Administration?

A:

No. DDS stands for Disability Determination Service. This is a state agency in Georgia whose job it is to review and decide your eligibility for SSI and SSDIB at the first and second levels. This means at your initial application level and at your reconsideration level.

If you are denied at both levels, your appeal goes to the Social Security Administration, for a hearing in front of an Administrative Law Judge. The judge will state at the start of your hearing that you will receive a completely fresh look at your evidence by the judge. This is your chance to win but you must have had your evidence already prepared well before the hearing.

Q:

What are FICA Taxes?

A:

FICA is short for Federal Insurance Contribution Act. Check your pay stub from work and if you see this tax taken out of your check, know that this tax goes to the Social Security Administration to fund the Social Security Retirement, Disability, and Medicine programs.

If you worked “for cash” do not expect to receive any social security disability or retirement money. If everyone else is paying taxes and “pilling up” funds for possible disability or retirement, you are spending your money each week. You are eligible for nothing. Frankly, if you are working “for cash” stop immediately and find a “legal job”.

Q:

What does ADL mean in a Social Security Case?

A:

ADL means Activities of Daily Living. The SSA and the judge that may eventually hear your case always asks you what you do during the course of your day. I always prepare my clients in advance for this question. Finally, I like to deep dive into one question but I also want supporting medical documents that agree with what you say about your ADL's.

For instance, if you cannot stand for more than an hour or so continuously, the judge will want to know why. Can you walk, sit and stand for 6 to 7 hours a day? Does pain interfere with your ability to function? How do you relieve the pain? Do you need to lay down and if so, for how long?

In the questionnaire I ask your doctor to complete, I do ask about whether your pain complaints are credible, whether your pain would require you to lay down and whether your pain will cause you to have good and bad days if you were working. How many days a month or a week would your doctor expect you to be out of work due to your current pain level. Does this match what you are testifying to as well?

These are not little matters. This correlative testimony adds or detracts from your credibility when testifying about ADL's. You need to go over this information with your lawyer long before you attend a hearing.

Q:

What can I expect when the SSA sends me to their doctor?

A:

According to my good friend, Attorney Foy Horne, a recently retired lawyer in Athens Georgia, who used to handle many SSDIB claims, he asserts that the doctors who are asked by the SSA to state their opinion after only a one-time examination of our clients, are under GREAT PRESSURE by this Administration to issue unfavorable decisions as often as possible. Frankly, I was quite surprised when I heard this. However, after looking at the records that I receive after the SSA asked my clients to undergo a one-time examination by their doctors, I realize that I rarely receive a positive opinion from these doctors. I think Foy is right!

Q:

Can I represent myself and just send all my medical records to the Social Security Administration?

A:

There is a saying in the Law that “He who represents himself, has a fool for a client”. No one should be un-represented at a hearing. If you show up at the hearing without being represented by a lawyer, the judge will try to persuade you to find a lawyer and reset your hearing. There is too much at stake to represent yourself. I have represented a few lawyers who became disabled and even they did not go at a hearing un-represented.

Medical records in and of themselves, do not tell the entire story of your disability. You need to have the medical records in the right format. The records do not ask questions about functional capabilities. They do not address the reasons why you can perform only light-duty or sedentary work. The medical records do not go into detail to state your medical conditions. These doctors do not know how to write a report and their medical records are horribly written. With all due respect to the doctors, the medical doctors ought to take a course in medical school in how to write a medical report and I will be glad to teach it for free.

You need to send a medical questionnaire to the doctor and have the doctor answer certain questions that the Social Security judge wants to hear about. Just submitting your medical records may not win your disability case. Now, sending a questionnaire to the physician costs money, but that is money well spent. Sending a Mental Residual Functional Capacity questionnaire to your psychiatrist is very much helpful. Sending this report to your medical doctor and having him confirm the findings of the FCE is a wonderful addition to your medical records and needs to be done.  There are certain things that we lawyers have learned over the years to help you win your case. Let us help you. Submitting records on your own gives you about a 10% chance to win your case. It does not matter how you testify in the hearing. If the judge does not find compelling evidence in the medical records, you will not win. 

Q:

If I cannot find a job in the field I have worked at for the last 20 plus years, will that fact make me eligible for Social Security Disability Benefits?

A:

This fact is only one of many that the SSA looks at to determine your disability status. Certainly, you are going to testify that the job you worked for 20 plus years you cannot perform now due to your disability condition. However, the SSA will look to determine if you have obtained any skills that are transferable from your old job to a new and different job. If those skills transfer, there is a strong chance you will not be able to qualify for benefits.

Remember, it is your burden of proof to show that you cannot perform any job you could qualify to do in the national economy. To the SSA, it does not matter if a specific job is available for you. At a hearing, the Judge will call on a VE (Vocational Evaluator) who will testify as to what jobs you could qualify to do. I have heard the VE's at a hearing state my client could be a “silverware wrapper” or a “gluer.”

These jobs sound ridiculous. You must be prepared to demonstrate why you cannot perform these jobs, even if you have never worked these jobs in your entire life.

Q:

Why should I not have my doctor or doctors just write a letter to the Social Security Administration to show I am disabled?

A:

Some of my best friends are doctors, but mercy me, they do not know how to write a letter! When my clients ask their doctor for letters (usually before I enter their case) the doctor states: “Please award Suzie or Jimmy disability benefits. I have treated them for years and I consider them disabled.” Yikes! This does nothing to help my client. Finally, it is the job of the SSA to determine my client's disability status.

What I need from your doctor is much more specific information, worded in such a way as to demonstrate your inability to function in specific ways. A general statement of disability will not work. So, let your lawyer ask the doctor for a specific report. It will certainly cost some money (doctors do not like to help a lawyer for free) but it is well worth it to prove the extent of your disability and to then win your case based upon this evidence!

Q:

What happens if I receive a denial letter at Level I or Level II from the DDS/SSDIB office?

A:

It is important to appeal any decision you receive within 60 days after you receive it or you will have to start over again. You can appeal online, in-person, or by telephone (a lost cause!). Save your appeal document by printing it to prove you did appeal and on time. At my law office, we will help you from Level I, the initial application, so you do not have to worry about late filing. I am amazed at how many people who are deserving of these benefits get frustrated or discouraged and do not appeal a denial. Development of your disability case is what we specialize in doing.

Q:

Why do I have to complete all the written questions about my activities? How detailed should I be in completing these forms?

A:

These forms are to be completed at your initial application of applying for Disability Benefits. Each examiner of your case, from the DDS examiner, to the Judge who may hear your case will look to your initial application to see if you were CONSISTENT then with what you are saying now about your impairments.

There are a number of things these firms seek to find out about you. All are very important. Essentially, you need to state in writing what you cannot do in every area of your life that has been affected by your disability. Here is a small list you should use but this list ought to be expanded if that is the truth.

  • Doing laundry
  • Vacuuming your hone
  • Driving
  • Mopping the floor
  • Making your bed daily
  • Caring for yourself and your family
  • Yardwork
  • Grocery shopping
  • Reading
  • Watching TV or videos
  • Attending church or other social activities
  • Sitting, laying down
  • Resting during the day (how often)
  • Sleeping
  • Dressing yourself
  • Visiting others outside your home

Always keep a copy of any document you send to SSA. It clearly helps you remember what you have stated and stated truthfully.

Q:

Must I attend a Social Security doctor's examination if the Social Security Administration sends me a letter telling me to do so?

A:

Of course. This is called a CE, consultation examination. The SSA pays for it. Sometimes you will be asked to attend a general physical examination. This is not worrisome. What is much more problematic is when the SSA asks you to be examined by a clinical psychologist or an orthopedic or another specialized doctor.

First of all, the SSA pays these doctors so little, they can hardly perform a complete examination economically. Note how long you are actually examined by this doctor. It may be useful information at a hearing.

These CE's report is almost never favorable to you. If you are claiming disability of any nature, the CE will find a way to say you can do work, full time, and with only modest physical or psychological limitations.

You must give truthful information to the CE. Any inconsistencies between the medical or historical information you give them and what you tell your personal doctors will be a strong reason to view you as less than credible. That will "torch" your case.

Do realize that if your personal doctor, specialized orthopedic, neurologist or clinical psychologist, or even your family doctor has treated you for years and their opinion is vastly different from the CE, the likelihood of the judge using the CE's report over your doctor is slim to none. You and your lawyer have a right to review the CE's Medical Report. Take it to your doctor for review and a good parsing of the findings. You may be able to pick it apart in 10 minutes or less.

Q:

Why does it take so long to get a favorable decision from the time I first apply for SSDIB?

A:

First level of application for SSDIB does not grant but about 25% of the applicants these benefits. That is at least 6 months process. There is a lot of paperwork that needs to be exchanged between you and the SS Administration. If you receive an unfavorable decision then you must file for a reconsideration that is another 6-month wait. Only about 4% win at the reconsideration level.

If you lose at this level, do not be discouraged, file an appeal that will be heard in front of an Administrative Law Judge. It will take about one year in the Metro Atlanta area for your case to case to reach the top of the heap and be heard in front of an Administrative Law Judge. Whatever date your case is set for your case to be heard, that will be the date. There are virtually no postponements allowed. You and your lawyer need to be absolutely ready well before the hearing date. All medical evidence needs to be submitted no later than 5 days before the hearing date. It will be then assigned a pre-hearing exhibit number. The pre-hearing memorandum or legal brief needs to be submitted as well, at a minimum of 5 days before the hearing.

Generally speaking, you will not need your spouse, relative, pastor to appear as your witness. The best witness will be the medical records, and the best testimony for your claim will be found in the medical records.

At the conclusion of the hearing, the judge will wish you good luck but will probably not tell you whether you won your case or not. There are ways your lawyer may be able to tell, based upon the vocational evaluator's testimony. If you receive a fully favorable award then 60 days later you will receive a Notice of Award and almost immediately thereafter you will receive a lump sum back payment and your lawyer will receive his/her fee of 25% that will be sent directly to his/her office.

If your lawyer has spent money in your case obtaining medical records, FCE's, consultation, examinations, now will be the best time to reimburse your lawyer for these expenses. The best time to pay is right at the time you receive your back pay. The lawyer will appreciate you reimbursing him/her for the expenses used to set you your case in the best light possible to help you win the SSDIB.

Q:

Can a Social Security Judge issue a ruling stating that I have failed to follow prescribed treatment for my disability?

A:

Social Security Regulation (SS 82-59) sets out the basis for such a ruling. And yes, a judge could deny you benefits on this basis.

If you have a disability impairment that could be treated and if treated you could be expected to have your ability to work restored, you must follow the generally accepted treatment protocol for that disability UNLESS there is a justifiable cause for the failure to follow such treatment.

The key is the words “fails without justifiable cause” to follow the treatment. If a treatment would be expected to restore an individual's ability to work, then the failure to engage in that treatment will allow a judge to deny you benefits.

When it is determined by your medical records that treatment has been prescribed by a treating source and the evidence discloses you have refused to follow that treatment, the burden is on you to prove your inaction is justifiable.

I caution my clients that if they decline to undergo a back or neck surgery and their physician informs the client that the chances of obtaining good surgical results are poor, so long as this information is obtained in a letter from the attending physician, then the burden of overcoming a refusal can be achieved.

There are other justifiable reasons. This one is the one I see most often.

Q:

Residual Functional Capacity-a key for determining eligibility for SSDIB

A:

One's RFC is a way to measure a person's ability to perform various tasks that all or most jobs will require. If you have one RFC performed (the cost is around $850 for this 3-4 hours testing) this test gives great weight to your functional ability. That is what the Social Security Administration is all about. The government wants to measure your ability to work. You can testify about your ability to perform or not perform a job but that is not enough. They want highly objective evidence. A good quality 15-page report with all types of measurements of your functional abilities, to stand, sit, walk, stoop, lift, twist, climb, bend, etc., is then given to your primary doctor who will review it for accuracy and if the doctor feels it is accurate then he/she will sign off for the authenticity of this document. That type of information is what Social Security Administration needs in order to determine your eligibility for benefits.

Obviously, they need more documentation than just the RFC. They need all kinds of medical records that coincide with your treatment and demonstrate your lack of ability. But the RFC goes a long way in establishing your functional abilities which give the Administration at Level III the Judge an opportunity to help you win your case.

Q:

Can I present medical evidence from a onetime medical examination or must I have ongoing treatment from the treating physician?

A:

A recent memorandum and Rule change makes it easier for the Social Security judge to look at any evidence submitted even if there was only a one-time medical examination. This change can help my clients especially the ones who cannot afford to pay for a substantial amount of treatment and may need to rely only on a one-time examination from a particular orthopedic, neurologist, pain management doctor, or another specialist. The problem is that Social Security Administration can also require you to go to one of their doctors as a one-time examination and can use their opinion as evidence just as easy to give a bad decision that will cause a denial of your claim.

That is why I do not like this Rule. I would much prefer that my clients will have ongoing treatment and then I will get a narrative report or a response to a physician's questionnaire from the doctor that will address the essential medical issues for the Social Security Administration to consider. As mentioned above, some clients cannot afford ongoing treatment, especially in the psychological area. If I send my client to a clinical psychologist for a detailed report, that will cost about $600 to $1,000. Ongoing treatment could be $2,000 to $3,000. The question is will the Judge accept the onetime detailed psychological examination/report? That is up to the individual Judge. However, if psychological treatment is properly addressed and documented that show marked limitations in the individual's ability to concentrate during the course of a workday, this may be what you need to place your case in the win column. Therefore, documenting a psychological or psychiatric condition, especially if it is considered permanent, or long-standing, or chronic, is a genuine benefit in a case. It just needs to be properly documented.

Q:

Can the judge give my treating doctor less weight when making his/her decision today my benefits?

A:

One of the primary principles of evidence in a Social Security Disability case is how the judge classifies the treating physician's written testimony.

In a recent case decided in 2019, the judge gave very little weight to the treating physician's testimony. In doing so, the judge was unable to give legally sufficient reasons for rejecting this evidence.

The rules called “credit as true” and as applied here means if the treating physician's opinion was credited as true, the judge would be required to find the applicant disabled based on the vocational expert's testimony that there would be no work for someone with the limitations the doctor stated. This is another example of the need for strong treating physician testimony to win a case for someone seeking Social Security Disability benefits.

Q:

Pre-Hearing Memorandum

A:

What is a pre-hearing memorandum and is one necessary in my SSDIB case?

This document is the closest thing to a legal brief that we have for the Social Security Administration. I must submit this document 5 days before the hearing. Judges always read my pre-hearing memorandum and many of them thank me for providing them with one. I try to have one in every SSDIB case. There are some exceptions but not many.

A pre-hearing memorandum highlights all of your medical evidence, your commencement of disability, the date last insured, your educational level, and your transferable skills. It allows me to argue at the end, in the conclusion, why you should be entitled to SSDIB.

The pre-hearing memorandum will not replace your live testimony. However, assuming the judge reads the memorandum along with the medical exhibits that I refer to in the pre-hearing memorandum, the judge has all the evidence that they need to issue a Favorable Decision for your case. Therefore, you cannot lose by submitting this pre-hearing memorandum. By doing so, the judge may find that he/she does need to extensively examine you. In other words, the case may go much quicker since the judge already has all the necessary evidence at their fingertips. A good lawyer presents a pre-hearing memorandum to ensure a much better chance to win your case.

Q:

What is a Fully Favorable Decision?

A:

In a recent Fully Favorable Decision I received on behalf of a very deserving client of mine, the judge who heard the case was NOT persuaded by the one-time medical and psychological examination performed at the request of the Social Security Administration.

Typically, at the lower levels, the Administration will send my client to “their” doctor for an examination. The resulting report is almost always unfavorable to my client's condition. In other words, their one-time examiner says my client is NOT disabled.

Now, fast forward to the hearing where the judge reviews ALL the evidence, including all the evidence I have prepared and submitted along with the same old one-time examination ordered by the Social Security Administration.

In this particular case, the judge stated “…the medical opinion of the consultative medical examiner was only somewhat persuasive… this opinion is not entirely consistent with the record as a whole and is only somewhat supported by the examiner's own evaluation of the claimant.”

The Judge further stated, “… I find the medical opinion of the consultative psychological examiner to be unpersuasive.”

We worked hard to develop the medical and psychological records of the full extent of my client's disabilities. When these records were compared and reviewed by the Judge who heard the case, the Judge was clearly persuaded by our well-developed medical record and not by the one-time examination of the Administration's doctor. This takes effort. It takes an understanding of the client's medical condition. It takes teamwork to make it all happen. This is what we do.

I invite you to take a look at a most recent Google review on my website at www.burdineandbrown.com, by one of my former clients, Ms. Vicky Porta. It speaks volumes as to the quality of services a client receives from us.

Q:

Do I need to go to the hearing in my case?

A:

Absolutely! This is almost the only way you are only to get a favorable decision from the SSA. An Administrative Law Judge reviews all the medical records that I submit and gives your case evidence a fresh look. Without a hearing, the SSA would have their local bureaucrats issue opinions and these folks are not well trained and you cannot expect a favorable decision in your case. There are many Social Security Administrative Law Judges throughout the US they are all attorneys and they have been practicing at least 5 years before their appointment as an Administrative Law Judge. Most of these judges are quite fair, some are older and set in their ways and perhaps should retire. The vast majority are excellent judges who will give me an opportunity to present my client's case and give my client an opportunity to respond to the judge's questions about the extent of their disability.

Q:

Some people tell me that if I have exaggerated or made a false statement it can be held against me. Is that true?

A:

We call this a credibility issue. Judges genuinely despise people that exaggerate their medical symptoms or make false statements when testifying about their case in court. Your best chance of winning your case is when you tell the truth and the entire truth at all times.

When you first applied for SSDIB you completed a series of documents and forms. You stated in those forms whether you have any limitations due to your disability. I will guarantee you that every Social Security judge reads those initial forms that you completed two years ago when you first applied for benefits and they will examine you and if you state that your limitations are different than what you stated on those forms that will be an issue. You will be asked why your condition is different today. You certainly will lose credibility with that judge. Make sure you keep a copy of that initial form you first submitted when you applied for SSDIB. Your earlier comments and statements may come back and haunt you!

Q:

What is the percentage of Favorable Decisions made by the judge in my case?

A:

If you go online at SSA.gov, and look under the judge that will be hearing your case, you will see a chart for all Social Security judges. Now, if the Social Security judge that is going to hear your case has a 25% approval rate that may seem pretty bad. Now, this is not always the case, since some people file an SSDIB claim but do not show up for court and that is considered a denial that will go under that Social Security judge when he disposes of that case. Some people obtain medical treatment and after a period of time, they get better and decide not to pursue the SSDIB claim initially filed. Those types of cases contributes to that same 25% denial rate under that particular judge.

A recently good friend of mine who used to do many SSDIB cases, Foy Horne in Athens Georgia, told me that the overall approval rate is about 60 % for Administrative Law Judges. That is a more palatable approval rate. However, that approval rate, said Foy Horne, is based upon the quality representation of a lawyer who knows how to handle an SSDIB claim. That number does not represent the people representing themselves nor a new lawyer who is trying to learn how to put together these types of cases.

Q:

In my hearing notice it states that there will be a vocational evaluator present. What does this mean?

A:

The government employs a Vocational Evaluator in almost every case. The Vocational Evaluator sits at the table across from us and listens to the evidence we present. The judge then asks the Vocational Evaluator to describe your past relevant work. Then he asks the Vocational Evaluator if you can perform the present job and most of the time the Vocational Evaluator will state NO.

Then the judge will ask one or more hypothetical questions based upon certain facts. The judge will ask whether you can perform work that is of a lighter nature, maybe sedentary work. The judge will take into consideration your age, your education level and maybe will ask whether you have transferable skills. The Vocational Evaluator will respond and usually, they will come up with some type of job where there are 20,000 in the national economy. Let me give you some examples when the Vocational Evaluator stated that my client(s) can perform some of these jobs:

  • Sorter - 100,000 jobs available
  • Gluer - 25,000 jobs available
  • Inspector - 18,000 jobs available

At some point, either the judge will give an additional and more accurate hypothetical of the true limitations that were testified to by the medical evidence presented in court or that you have verbally testified to, and then I will have the opportunity to cross-examine the Vocational Evaluator and ask him those questions.

At some point the Vocational Evaluator, based upon the true limitations that you have that are in evidence in your case and are credible, the Vocational Evaluator will state that there is no work available. In that case, then you will win your case. If the Vocational Evaluator states that there is work available then we have continuing legal issues over the Vocational Evaluator's testimony and it is up to the judge as to what ruling will take place.

I believe that there are some cases that are “close case” which means they go either way, depending on what the Vocational Evaluator will state. That is why I need to hire a private Vocational Evaluator to meet with the disabled person and provide a true and correct analysis in writing and present that evidence at the hearing. This can be very persuasive.

Q:

Do I need to testify live at the hearing for my SSDIB?

A:

This question assumes that you lost the claim at Level I and then you appealed at Level II and lost and now you are at Level III and have the chance to appear in front of an Administrative Law Judge. That is when you need to appear and give live testimony at the hearing. This will give you and I an opportunity to present the evidence and the Judge will look at your case fresh and without any prejudice.

Yes, you will need to testify. The judge will ask you a series of questions, and I may ask you a series of questions but you definitely will need to give your testimony. You will not need to memorize a script but you need to tell the truth and keep your answers short. The best evidence that we have in your case is the medical records I collected over the last year that I probably have represented you. I will ask questions about your functional abilities. What do you do around your home, do you do any cleaning, shopping? Do you attend church? Do you attend any social activities, are you taking walks? Is your home a one-story or multiple stories requiring you to climb stairs? Are you cooking for your family? I will ask you about your education level and how long ago, or whether you attended any technical school after your high school years. If you have a college degree I will ask you about the type of degree you have and how you have used this degree in your jobs over the years. Either the judge or I will ask you about all your prior work for the last 15 years. You need to know where you worked and what type of work you did and how much you lifted, twisted, bended in your job. This is very important for the VE as he/she is present in the hearing so that they can best classify your past relevant work. I will then ask you about your medical condition and why you consider that you are disabled. I will ask you how you cope with the pain, do you need rest during the day, and if so, how much and how often.

Your answers should coincide with the notes that we have from your treating physician. If your doctors state that you have some bad days and could miss up to 4 days a month or even one day a week from work. That information is very relevant and I would expect that your answers will coincide with the medical notes. Your testimony should last about 20 to 40 minutes between the judge's and my questions. It is absolutely imperative that you do not exaggerate your symptoms in your statements. If your medical records indicate that you cannot stand sit and walk for one hour each for a total of three hours, then do not tell the judge that you can only do all these only 10 minutes at a time. That is a red flag for the Judge.

I prepare my clients well in advance of the hearing for their testimony. The Judge is professional and not attempting to intimidate you but they are only intended to gather information and whether that information coincides with the medical evidence that I have already presented to the Judge. All in all, I found my clients to rise to the occasion and do extremely well when giving their oral testimony in their disability cases.

Q:

What does it cost to hire a lawyer to represent me in my SSDIB claim?

A:

There is no fee unless the attorney wins the case for you. If the lawyer presents you with a contingency fee contract (I do this exclusively) and if the lawyer wins then he is entitled to receive $6,000 maximum. The payment comes from the back pay of the benefits that the applicant is entitled to receive. In other words, if you win $24,000 of back pay the lawyer is entitled to receive $6,000 out of this total. The Social Security Administration will carve out $6,000 and send you a check in the amount of $18,000.

If you receive a $20,000 back pay the lawyer is entitled to $5,000. If you receive $12,000 of back pay your lawyer is entitled to $3,000 that will be carved out of the full amount.

There are expenses that I need to spend in order to present your case in front of the Social Security Administrative Law Judge. If you are also my workers' compensation client I can probably get most of the medical documentation, records, and questionnaires completed under the WC system. However, you come to me and you have no other claim then I will need to get a retainer from you in order for me to start your SSDIB case. Here are some of the expenses you can expect to have in your case:

$850 for a Functional Capacity Evaluation (FCE);

$250 for one questionnaire and $500 for 2 that I will need to submit to one or two of your treating physicians who know your medical condition well;

$50 times 3 for various medical records to document your ongoing medical treatment;

$2,500 possibly a Vocational Evaluation by a private VE. This can be the highest expense in your case, and it may not be needed;

Frankly, many clients come to me that have no other claim and no group insurance benefits. They cannot afford for me to represent them. When they tell me that they cannot afford this “high cost”, I tell them they cannot put me “in a boxing ring blindfolded and tie on hand behind my back” and expect me to win their case. I need to produce quality evidence and that can only be done by paying medical providers to produce good evidence that you are disabled. Good evidence wins cases. Sparse or very little evidence gives the Judge an opportunity to deny your claim. That is a waste of everybody's time.